Preview:

STATE OF MICHIGAN
COURT OF APPEALS


THOMAS W. H. BARLOW and SUSAN BARLOW, Plaintiffs-Appellees, v JOHN BOROTA, Defendant-Appellant.

UNPUBLISHED August 16, 1996

No. 175157 LC No. 93-302302

Before: Taylor, P.J., and Murphy and E.J. Grant,* JJ. PER CURIAM. In this property dispute, defendant appeals as of right the trial court's order granting summary disposition to plaintiffs. We reverse and remand. Plaintiffs and defendant are adjoining landowners of commercial property located in the City of Inkster. An alley runs North-South behind the subject properties. Prior to 1958, the alley was considered a "public alley." On July 22, 1958, the Council for the Village of Inkster passed a resolution vacating the alley and converted it into a public easement. In 1990, defendant erected a fence across the alley which blocked access to plaintiff's property from West River Park Drive. After plaintiffs filed a complaint against defendant, both parties moved for summary disposition. The trial court entered an order declaring the alley a public easement "for access and use by members of the public" and a private easement "for access and use by Plaintiffs, their successors and assigns." Pursuant to the order, defendant was required to remove the fence at his own cost. Defendant first argues that the trial court lacked subject-matter jurisdiction over this case because plaintiffs failed to exhaust their administrative remedies prior to filing suit. Although defendant did not assert this issue below, questions of subject-matter jurisdiction may be raised at any time. Ass'n of Businesses Advocating Tariff Equity v Public Service Comm, 192 Mich App 19, 24; 480 NW2d 585 (1991).

* Circuit judge, sitting on the Court of Appeals by assignment. -1

A plaintiff is required to exhaust administrative remedies only where the administrative agency or board is capable of providing the relief requested. Trever v Sterling Heights, 37 Mich App 594, 596 598; 195 NW2d 91 (1972). Defendant did not identify an agency capable of providing plaintiffs the relief which they sought in their complaint. The Inkster Board of Zoning Appeals is authorized to make decisions regarding enforcement and interpretation of the Zoning Code. City of Inkster Zoning Code,

Download THOMAS W H BARLOW V JOHN BOROTA.pdf

Michigan Law